Cruel and unusual punishment:
the politics of crime in the United States

Both houses of the United States Congress passed President Clinton’s $30 billion Omnibus Crime Bill in August 1994 by wide margins. A few days later the president signed ‘the largest, most expensive crime bill in history’ into law. [1] Clinton had in fact worked overtime to ensure the legislation’s passage. The core of his proposal included a sizeable increase in the number of police and an extension of police powers, a further expansion of prison building, and a series of provisions mandating harsher punishments for those found guilty in federal courts. In order to win over Republican votes [2], Clinton reduced the modest amount of preventative social spending originally contained in the bill. He also jettisoned a provision supported by the Congressional Black Caucus which would have permitted statistical evidence of racial bias to be used by defendants appealing against death penalty sentences. The final legislation was a major victory for all those who argue that crime in the streets is not a consequence of poverty, inequality, bad housing, disintegrating schools, high unemployment and other social causes, but is instead largely the result of anti-social individuals, who must be punished severely in order to deter others and protect the public. [3]

By any reasonable standards, Clinton’s crime bill (which eventually ran to 412 pages) is draconian. Among its provisions are the following [4]: $10.8 billion in federal matching funds for local governments to hire 100,000 new police officers over the next five years, $10 billion for the construction of new federal prisons, an expansion of the number of federal crimes to which the death penalty applies from two to 58 (the bill also eliminated an existing statute which prohibited the execution of mentally incapacitated defendants), a so called ‘three strikes’ proposal which mandates life sentences for anyone convicted of three ‘violent’ felonies (or even ‘attempts’ to commit such felonies) or of two ‘violent’ offences and one ‘serious’ drug felony, a section which allows children as young as 13 to be tried as adults, and the creation of special courts able to deport non-citizens alleged to be ‘engaged in terrorist activity’ on the basis of secret evidence.

But while the federal crime bill is severe, it is by no means a policy aberration in US terms. In fact, the legislation represents simply the latest stage in a ‘law and order’ backlash which has been moving at full speed since the early 1980s and which has historical roots going back over 30 years.

Crime hysteria

Over the past decade and a half the United States has experienced a massive increase in the size of what one criminologist has dubbed the ‘crime control industry’. [5] Between 1980 and 1990 the number of police in the country doubled, and in a single year (1990) the Federal Bureau of Investigation increased in size by 25 percent. [6] The increase in the level of incarceration has been even more dramatic. Since 1980 the total prison population at federal, state and local levels has tripled to over 1 million [7], more people than live in San Francisco or Washington DC. The female prison population doubled between 1985 and 1992. [8] The incarceration rate in the US, exceptionally high at the beginning of this period, is today almost off the scale compared with any other advanced capitalist country (see Figure 1). The situation has become so extreme that 40 states were under federal court order in 1992 to reduce overcrowding in their prisons. [9] The worst case is California, where the prison population grew by 460 percent between 1977 and 1992, from less than 20,000 to more than 110,000. The California prison system is now not only by far the largest in the country, it is, if we exclude the US as a whole, the second biggest in the world after China. [10]

The numbers involved in other sectors of the criminal justice system are even more enormous. In the middle of 1991 almost 2 percent of the US population (over 4.4 million people) were in prison, on probation, on parole, or under some other form of control – one and a half times more than the population of Chicago. In 1989 more than 14 million people in the US were arrested. [11] State and local governments today spend more on the criminal justice system than on the education budget. The criminologist William Chambliss reports that:

Nationwide, expenditures on criminal justice increased by 150 percent between 1972 and 1986, while expenditures on education increased by 46 percent. Between 1969 and 1989 per capita spending on criminal justice in US cities … rose from $34 to $120 and county expenditures as a percentage of total budget rose from 10 to 15 percent between 1973 and 1989. State expenditures showed even greater increases, rising tenfold from per capita expenditures on police and corrections of $8 in 1969 to $80 in 1989. State government expenditure for building prisons increased 593 percent in actual dollars. Spending on corrections – prison building, maintenance, and parole – has more than doubled in the last ten years. [12]

This massive growth in the crime industry, however, may only be the beginning. A series of recent laws passed at both federal and state levels (including, of course, the Clinton crime bill discussed above) will increase both the number of police and the prison population even further. Washington state passed a ‘three strikes’ law in November 1993 which mandates life imprisonment for anyone found guilty of a third felony offence. A similar law was passed in California a few months later, and about 30 other states are also considering some form of it. [13] Numerous states – including California, Florida, Illinois and Minnesota – have also enacted laws which make it easier to charge juvenile offenders (in some cases as young as ten years old) in the same way as they can adults. [14] In California it is estimated that by the end of the century the prison population will nearly double again and that the state will need to build 20 new prisons over the next five years. By the year 2027 the prison population in the state will reach 275,000 according to the California Department of Corrections. [15]

Crime hysteria in the US has not impacted on all sections of the population equally. As Chambliss notes:

It is minorities, especially young African Americans and Latinos, who are disproportionately arrested, convicted and sentenced to prison. In 1991, African-American males between the ages of 15 and 34 made up 14 percent of the population and more than 40 percent of the people in prison … In Washington DC and Baltimore, 40 to 50 percent of all black males between the ages of 18 and 35 are either in prison, jail, on probation or parole, or there is a warrant for their arrest. [16]

These figures are quite astonishing. The rate of imprisonment for black men in the US is 7.4 times higher than for white people and actually over four times that of black men in South Africa before the dismantling of apartheid (see Figure 2). There are now more young black men (aged 20 to 29) under the control of the criminal justice system than in college, and one out of every four black men will be imprisoned at some point in his life (not counting stays in local jails). [17] Blacks are also three times more likely than whites to be killed by the police. [18]

The roots of US crime policy

How are we to explain the vast growth of the US crime industry in recent years? One possible explanation is that the increase is due to a rising level of crime. But while the crime rate, particularly the level of violent crime, is certainly higher in the US than in other advanced industrialised countries [19], it is simply a myth that crime is on the increase in the US. According to Chambliss, ‘The best available data, the findings of victim surveys conducted every year since 1973, show that the crime rate has not changed significantly in the last 20 years’ [20], with violent crimes and murder being no exception to this general trend. Indeed, if anything, crime rates have decreased slightly since the early 1980s, particularly in the predominantly white suburbs, where a ‘resident was 13 percent more likely to be a victim of violent crime in 1973’ than today, and where ‘crimes like theft and burglary have declined substantially’. [21]

Moreover, even if the crime rate were rising, increasing the size of police forces and lengthening prison sentences hardly seem to make sense in rational policy terms. Research shows that the police are ineffective in preventing crime [22], and according to the American Bar Association’s Task Force on Crime, ‘There is no solid evidence to support the conclusion that sending more convicted offenders to prison for longer periods of time deters others from committing crime.’ [23] Meanwhile, the ‘three strike’ frenzy threatens to bust state budgets while tens of thousands are locked up for relatively minor offences. In the states which have passed such laws this has already begun. In California, Duane Silva, a retarded 23 year old, has been sent to prison for the rest of his life for stealing a video recorder from a friend’s house. [24] Others have been charged with third strike offences that include stealing 50 cents and sitting in a stolen truck. [25] According to a report by the Center on Juvenile and Criminal Justice, 75 percent of third strike cases in Los Angeles County involve a third offence that is non-violent and non-serious. [26]

In Washington state, Larry Fisher was sent to prison for life for:

… putting his finger in his pocket, pretending it was a gun, and robbing a sandwich shop of $151. An hour later police arrested him at a bar a block away while he was drinking a beer. Fisher’s two prior strikes involved stealing $360 from his grandfather in 1986 and then robbing a pizza parlour of $100. [27]

Fisher is 35. If he lives to the age of 70, the cost of imprisoning him will be at least $1 million. This hardly seems to be a rational use of public money.

Perhaps crime policy in the US can be explained as a response to increased public concern about the issue, whether or not such concern is based on an accurate perception of the facts. This is the explanation offered by the right wing sociologist James Q. Wilson for the emergence of crime as a national political issue in the 1960s. Wilson claims that from the mid-1960s Gallup polls frequently showed crime to be the issue viewed by Americans as the most important problem facing the country. Chambliss shows, however, that Wilson’s claim is false. In fact, between 1935 (when Gallup polls first began to be taken) and 1993 ‘crime rarely appears as one of the most important problems mentioned’ and was ‘never chosen over other issues as “the most important problem facing the country”.’ [28]

More recently there has been a shift. In early 1994 a New York Times front page story announced that Crime Is Becoming Nation’s Top Fear[29], and the University of Chicago’s General Social Survey conducted in the spring of the same year reported that fighting crime came highest in a list of the public’s spending priorities. [30] But recent increased concern over crime is quite obviously an effect, and not the cause, of the massive attention given to the issue by politicians of both main political parties and by the corporate media. According to one report:

Crime took up more than two and a half hours (157 minutes) a month on the three nightly network news shows from October 1993 until January 1994. In the three years ending with January 1992, by contrast, these network shows spent 67 minutes a month on crime stories. And the coverage has taken on a shrill tabloid tone, designed to evoke fear, as with NBC Nightly News’ regular feature Society Under Sieg’. [31]

The saturation coverage clearly has an impact, since a recent poll found that 65 percent of the population get their information on crime from the media. [32]

Chambliss suggests that there are two underlying reasons for the growing crime hysteria in the US. First, there is the lobbying power of law enforcement agencies and other sectors of the ‘crime industry’. ‘On those rare occasions when a mayor or governor suggests cutting justice expenditures or even holding steady the number of police officers, propaganda, politicking and arm twisting by police officer associations … and lobbyists with vested interests in supplying equipment and prison facilities quickly reverse the decision’. [33] No doubt such activities sometimes play a role, but on their own they cannot be the only or even the main explanation. Teachers’ unions, building contractors, school textbook publishers and other groups with a vested interest in increased education expenditure presumably have comparable influence to the crime lobby, yet they have not been able to prevent sharp cuts in education spending in recent years.

Far more important is a second factor mentioned by Chambliss: the way in which an emphasis on ‘crime control’ has come to serve ruling class interests in the US, both ideologically and by giving the state increased powers of repression to deal with the most economically deprived section of the population and other potential troublemakers. [34] As he puts it:

The politicisation of crime by conservative politicians occurred at a time when the country was deeply divided over the Vietnam War and civil rights. In this historical context crime became a smokescreen behind which other issues could be relegated less important. Crime served as well as legitimation for legislation designed primarily to suppress political dissent. [35]

This is exactly right. However, there are some important differences between the 1960s on the one hand, and the 1980s and the 1990s on the other. In the earlier period the main use of the crime issue was ideological. In particular, crime was used as a weapon to limit and attempt to roll back the gains of the Civil Rights movement, as well as to attack the other social movements of the 1960s. More recently, however, as economic inequalities in the US have deepened, the main purpose of crime policy has become less subtle. Significant sections of the population – notably black and Latino youths in urban centres – have been criminalised, as inner cities across the country have been turned into virtual police states. As social spending in the US falls dramatically with more cuts to come and well paid full time jobs become more scarce [36], crime control has become an increasingly important part of social policy. The ideological function, however, has not disappeared. Crime policy continues to play an important role in perpetuating racism, reinforcing the central division in the US working class and thus making a unified fightback against the root causes of unemployment, poverty and inequality more difficult. [37]

High rates of imprisonment for minority youth can be explained in part by the fact that they are disproportionately represented in the most economically deprived sections of society, but also reflect the way in which the legal system discriminates against suspects on the basis of their colour.

The ‘law and order’ backlash in the 1960s

Before the 1960s crime was seldom an issue in national and, in particular, presidential politics in the United States. [38] Crime prevention, detection and punishment, were generally seen as matters for state, county and local governments. It was not until the presidential election of 1964 that crime became a major national issue. The far right Republican candidate, Barry Goldwater, who was a fanatical anti-Communist in foreign policy, and who opposed civil rights legislation at home, made ‘law and order’ a central part of his campaign. In his acceptance speech at the Republican convention, Goldwater warned of ‘violence in the streets’ and of the ‘growing menace to personal safety, to life, to limb and to property’. [39] All of this was little more than a thinly veiled attack on the Civil Rights movement which was fighting against segregation in the South and racial discrimination in the North. In a speech later in the campaign he was more explicit:

Our wives, all women, feel unsafe on our streets. And in encouragement of even more abuse of the law, we have the appalling spectacle of this country’s ambassador to the United Nations [Adlai Stevenson] actually telling an audience … that ‘in the great struggle to advance human civil rights, even a jail sentence is no longer a dishonour but a proud achievement.’ Perhaps we are destined to see in this law-loving land people running for office not on their stainless records but on their prison record. [40]

But Goldwater’s rhetoric proved to be too extreme for the majority of the American voters [41], and he lost the election to Lyndon Johnson in a landslide. Significantly, however, five of the six states which Goldwater carried were in the South, which had been solidly Democratic for the 100 years before.

Johnson himself was impressed by Goldwater’s use of the law and order card, and adopted some of the rhetoric himself as part of a so called ‘war on crime’. But it was politicians further to the right who made most of the running with the issue. As the 1960s progressed, ‘law and order’ became the rallying cry of right wingers opposed to the Civil Rights, anti-war and student movements, as well as a convenient way to make coded appeals to racists, particularly in the South. The master of this form of politics was George Wallace, the arch-segregationist Democrat governor of Alabama, who ran for president as an independent in 1968 and won 13 percent of the vote. Wallace’s racism was barely hidden. In 1967, for example, he told an audience in South Carolina that ‘Supreme Court decisions have made it almost impossible for police to arrest a criminal. Politicians are always trying to explain why some people don’t obey the law – because they didn’t have any watermelon when they were small children’. [42] On another occasion he openly blamed crime on blacks: ‘Crime is one of the reasons race relations have deteriorated’. [43] Above all, Wallace linked concern over street crime to attacks on the Civil Rights movement and the black ghetto rebellions of the mid-1960s. As he put it in one speech, ‘The lawlessness emanating from lawless edicts [i.e. civil rights legislation] now stalk [sic] in our streets, riot in our cities, intimidate our Congress and threaten the very order of our civilisation’. [44]

Wallace had no real chance of winning the presidency in 1968, but his successful manipulation of the law and order issue was taken up enthusiastically by the election’s eventual winner, the Republican Richard M. Nixon. As Wallace correctly noted, ‘Law and order is an issue in the 1968 presidential campaign and I was the first candidate to speak out on it a year and a half ago’. [45] Nixon, unlike Wallace, was no homegrown Southern racist, but a Northern politician who had gone on record in opposition to segregation. But Nixon also had a record as a political opportunist willing to use any tactics necessary to win an election, and he was quite happy to borrow Wallace’s law and order rhetoric if that would help win votes in the South. [46] This was part of Nixon’s ‘Southern strategy’, later spelled out in detail in Kevin Phillips’s 1969 book, The Emerging Republican Majority. [47] The idea was to learn the lessons of the Goldwater campaign, and to consolidate a solid bloc of Republican voters by winning over Southerners attracted to Wallace, social conservatives, and white ethnics. As part of this strategy Nixon ‘made law and order his central theme, and played it hard to enthusiastic audiences who greeted his punch line with vigorous applause: “Some of our courts have gone too far in weakening the peace forces as against the criminal forces”.’ [48]

Nixon’s running mate, Spiro T. Agnew, the governor of Maryland, followed Wallace in linking fear of street crime to attacks on the black liberation and anti-war movements. ‘When I talk about troublemakers’, he said in a September speech, ‘I’m talking about muggers and criminals in the streets, assassins of political leaders, draft evaders and flag burners, campus militants, hecklers and demonstrators against candidates for public office and looters and burners of cities.’ [49] Nixon himself wrote in an article published in Readers’ Digest that America was ‘the most lawless and violent [nation] in the history of free peoples’, blaming this on the ‘growing tolerance of lawlessness’ by civil rights organisations and ‘the increasing public acceptance of civil disobedience’. [50]

Early on in the campaign Nixon attacked the President’s National Advisory Commission on Civil Disorders (the Kerner Commission), set up by President Johnson after the Detroit riot in 1967, for blaming urban disturbances on poverty and white racism. ‘One of the major weaknesses of the president’s commission’, Nixon told a radio interviewer in New Hampshire, ‘is that it, in effect, blames everybody for the riots except the perpetrators of the riots.’ Nixon’s own solution would be ‘to meet force with force’, and he demanded ‘retaliation against the perpetrators of violence’ that was ‘swift and sure’. According to Ambrose:

Nixon was pleased with his effort, and even more so with the response. He wrote [to former president] Eisenhower, delightedly, that ‘I have found great audience response to this theme [law and order] in all parts of the country, including areas like New Hampshire where there is virtually no race problem and relatively little crime’. [51]

During the campaign, Nixon’s Democratic opponent, vice-president Hubert Humphrey, replied that ‘for every jail Mr Nixon wants to build I’d like to build a house for a family. And for every policeman he wants to hire I’d like to hire another good teacher’. [52] Nixon responded by accusing Humphrey of having ‘a personal attitude of indulgence and permissiveness toward the lawless’, and arguing that by identifying poverty as the root cause of crime, the vice-president was showing sympathy for criminals. [53]

Nixon won the 1968 election narrowly and was then faced with the task of converting his law and order rhetoric into concrete proposals. As the historian Michael Genovese notes, however, ‘Nixon never developed a thought-out, coherent anti-crime programme’ and ‘the politics of crime took precedence over the policy’. [54] Bob Haldeman, Nixon’s chief of staff, recorded a March 1970 meeting in which the president told him, in a memo, ‘Problem is not what we do – but the appearance/not getting the points we should on crime’. [55] In a June 1971 meeting Nixon told Haldeman, ‘Look in terms of how create issues/need an enemy, controversy/drugs and law enforcement. May be one/esp since so weak in polls’. [56] Shortly afterwards the administration intensified the war on drugs, but an internal memo by one aide later conceded that ‘nothing really was accomplished’. Nevertheless, as Genovese points out, the policy ‘did generate a great deal of favourable publicity for the administration. The pattern of devising policies for their favourable press as a way to boost the image of Nixon as tough on crime replaced substantive policy as a means of reducing crime’. [57] It also served as a way of distracting attention from other issues such as the rapidly deteriorating economy and the continuing war in Vietnam. [58]’

The Reagan – Bush years and the war on drugs

Nixon used the crime issue for primarily ideological ends, but the exposure and cover up of the Watergate break in and Nixon’s eventual resignation in 1974 turned public attention towards crime and corruption in high places and away from crime in the streets. But the law and order rhetoric of Goldwater, Wallace and Nixon made a comeback, and indeed reached new heights, with the election of Ronald Reagan to the presidency in 1980. Reagan had already won a reputation for being ‘tough on crime’, as well as an opponent of civil rights and of the various social movements, during his period as governor of California from 1966 to 1974. Like Goldwater, Reagan opposed the federal Civil Rights Act of 1964 and the Voting Rights Act of 1965. His 1966 campaign to be governor began in the wake of the 1965 Watts riots in Los Angeles and from the start played on racial tensions. As one Reagan aide put it at the time, ‘We’ll settle for the white vote.’ Reagan opposed legislating an end to racial discrimination in housing on the grounds that this would compromise the property rights of owners. In a speech to the California Real Estate Association he claimed that black allegations of discrimination were simply ‘staged attempts to rent homes, when in truth there was no real intention of renting, only of causing trouble.’

Reagan became a master of linking the law and order theme with covert, and sometimes not so covert, racial messages. He described the black ghetto rebellions of the 1960s as ‘riots of the law breakers and the mad dogs against the people’. Commenting on the assassination of civil rights leader Martin Luther King Jr in 1968, Reagan blamed King’s own advocacy of civil disobedience: this ‘great tragedy began when we began compromising with law and order and people started choosing which laws they’d break.’ One Reagan radio commercial of this period warned:

Every day the jungle draws a little closer. Our city streets are jungle paths after dark … Man’s determination to live under the protection of the law has pushed back the jungle down through the centuries. But the jungle is always there, and somehow it seems much closer than we have known it in the years preceding. With all our science and sophistication … the jungle still is waiting to take over. The man with the badge holds it back. [59]

After he became president, Reagan worked diligently to give the ‘man with the badge’ increased powers. During his first term in office his Justice Department lobbied the Supreme Court to strengthen the power of government and weaken individual rights. According to one commentator, ‘Whatever the administration asked’ from the court, ‘it almost always received’. [60] During the court’s 1983-1984 term, for example, it ruled that preventive detention for people not yet charged, let alone convicted, of a crime is constitutional, restricted prisoners’ rights and allowed evidence seized illegally to be used in criminal trials. ‘I was quite struck by the fact that the Statue of Liberty was in shackles and being dismantled’, commented Harvard Law School Professor Laurence H Tribe. ‘In one sphere after another, the court has affirmed the almost boundless authority of government over the individual and of the executive over the other branches’. [61]

It was also under Reagan that the myth of the ‘career criminal’ who cannot be rehabilitated and who must be locked up permanently, took firm hold. In fact, as one commentator notes, there are few professional criminals:

Most of the people in prison are not evil or professional criminals. They tend to be poor people with emotional, drug, or alcohol problems who are caught doing something stupid. The ‘professional career criminal’ tends to be a media myth, unless we count savings and loan bankers, Fortune 500 companies, Oliver North and Company, etc. [62]

For an administration eager to give the courts and the prison system an increased role in social policy, however, the myth was a useful one. Legislation such as the federal Armed Career Criminal Act of 1988, which mandated 25 years without parole for a third time felon found in possession of a firearm, helped boost the federal prison population from 24,363 in 1980 to 60,751 a decade later [63], despite no increase in the rate of crime.

The central vehicle for crime policy under both Reagan and his successor George Bush was a newly invigorated ‘war on drugs’, directed in particular at minority communities in the inner cities. There is in fact a long history of using drug laws in the US to criminalise and harass members of non-white racial groups, the Chinese in the 19th century, Mexicans and blacks in the 20th. Despite rhetoric to the contrary, the same was true of the Reagan-Bush crusade. As a report in one mainstream newspaper put it in 1990, ‘The nation’s war on drugs has, in effect, become a war on black people’. [64]

Although a lower percentage of blacks and Latinos use drugs than do whites, and 80 percent of cocaine consumers (and most of the distributors) are white, enforcement efforts were concentrated (and indeed continue to be focused) on addicts and small time traffickers in the inner cities. Moreover, under federal law someone convicted of selling 5 grams or more of crack cocaine – the form of the drug most widely used by the poor – worth around $125 receives a mandatory sentence of at least five years. By comparison, one would have to be convicted of possessing 500 grams of powdered cocaine – the form of the drug generally used by middle class whites – worth nearly $50,000, to be given the same sentence. [65] The blatant racism could hardly be clearer.

The war on drugs was mainly responsible for the huge increase in the US prison population in the 1980s. By 1992 more people were in federal prison for drug crimes than for all crimes at the time Reagan took office. [66] Yet none of this had anything to do with either reducing crime or ending drug addiction. Much crime is in fact generated by criminalising narcotics, since this creates a profitable black market and the possibility of deadly turf wars. Meanwhile, as funds pour into law enforcement, budgets for rehabilitation programmes are slashed.

The collapse of liberalism

While it was Reagan and Bush who pushed the war on drugs, and the right wing agenda on crime more generally, they were helped enormously by the collapse of any kind of liberal opposition to their policies. Indeed, as Mike Davis observes, after George Bush trounced Michael Dukakis in the 1988 presidential election largely by accusing him of being soft on crime, ‘a whole generation of Democrats [now believe] that their political survival depends on being even more bloodthirsty than Republicans’. [67]

In the 1992 presidential election Clinton attempted to outflank Bush from the right on crime. He posed for photos with the police at every opportunity, called for more officers to be hired, and advocated ‘boot camps’ for young offenders. [68] Other leading Democrats followed his lead. By the time Clinton’s crime bill was passed last year, George Mitchell, the Democratic Senate Majority Leader at the time, was declaring, ‘On crime, the time is over when in fact or perception the Republican Party is seen as the party tough on crime. It’s the Democrats. [69]

Even Democrats with a more liberal reputation than Clinton or Mitchell have jumped on the bandwagon. The black Democratic leadership in Congress backed Clinton’s crime bill [70], and, as one commentator noted a few years ago, ‘it’s sometimes hard to tell the difference between the anti-drug rhetoric of, say, Jesse Jackson and George Bush’. [71] During the 1993 mayoral election in Los Angeles, the ‘liberal’ former council member Michael Woo, an Asian-American, essentially ran on the same platform as his right wing opponent, Richard Riordan. Both agreed, for instance, that the city’s top priority was 3,000 new cops. Mike Davis observes:

Woo imitated rather than challenged Riordan by hammering away on identical law and order themes. Against a background of rising white hysteria about a new riot in the wake of the Rodney King or Reginald Denny beating trials, the councilperson merely seemed to ratify paranoid perceptions of the inner city. It was a strategy that one of his campaign workers defended as ‘snake charming’. [72]

On the day of the election, however, Woo’s strategy proved to be a failure. Black and Latino voters stayed home in record numbers, while the majority of whites preferred to vote for a genuine right winger rather than his post-liberal carbon copy. Riordan won by a clear margin.

The retreat of the liberals, however, is not merely the result of cowardice or stupidity. Liberals are committed to reforming the existing system, not overthrowing it. In periods of sustained economic growth it is possible for them to fund education, housing, health and other programmes that address the social conditions which breed crime. In periods of economic crisis, however, this is no longer possible. The options then become either a radical break with the priorities of a society geared to generating profits for the few, or a shift to the right. Establishment liberals invariably choose the latter course. The options are especially stark in the present economic conjuncture. As the economist Michael Yates observes:

[US society is] coming apart at the seams. The national unemployment rate has not been below 5 percent since 1973, which means that at no time during the Reagan ‘boom’ of the 1980s were there fewer than 6 million unemployed by the government’s own count. The purchasing power of our weekly earnings is no higher now than it was in 1967. We have been able to maintain our standards of living only by working more hours or sending more family members into the workforce. Yet in the last few years family income has also begun to fall. Our children have not faced a bleaker future since the Great Depression of the 1930s … Average real family income fell for the poorest 60 percent of all families between 1977 and 1990, but it increased by 33.2 percent for the richest 20 percent and by a staggering 95.1 percent for the richest 1 percent. The government poverty level is barely enough to live on, yet there are more than 30 million people living below it. It is estimated that by the year 2000 one of every three children will be poor. [73]

The pressures of international competition are rapidly turning the United States into a two tier society in which large sections of the population face a future of low paying jobs, unemployment and little hope. In the absence of decent jobs or social programmes some other way is needed to keep them in line. Politicians of both major political parties have turned to crime control as a solution to this problem.

The death penalty

No article on criminal justice in the United States would be complete without some discussion of the use of the death penalty. The US is the only advanced industrialised country which still regularly employs capital punishment. In most of Western Europe there have been no executions for over 25 years, and the death penalty remains on the books only for exceptional crimes, such as treason during time of war. Even South Africa has had a moratorium on executions over the past few years.

For a time it appeared as if the US would follow the example of Western European countries and abolish the death penalty. In 1972, after a long campaign led by civil rights groups which highlighted the extreme racial bias in the application of capital punishment, the Supreme Court ruled in a case known as Furman v. Georgia that existing death penalty statutes were unconstitutional because they could be applied in essentially arbitrary ways. In 1976, however, the court reinstated capital punishment when it ruled that new and more elaborate death penalty laws passed by several states in the early 1970s were constitutional. [74] The court’s effective reversal of its earlier decision was symbolic of a general shift to the right in US politics as the movements of the 1960s and early 1970s ebbed and the post-war boom came to an end. Since 1977 there have been close to 200 executions in the US. Over 2,500 people are awaiting their fate on death row today.

Yet the arguments against capital punishment remain compelling. As one commentator observes, ‘There is no data supporting the notion that the death penalty deters capital crimes and much evidence showing that it is applied in racist and class-biased ways, almost exclusively against racial minorities and poor whites’. [75] It was the arbitrariness of capital punishment – the fact that the death penalty was often applied in one case while not in another identical case – that led to the 1972 ruling against it. Current statutes are supposed to be applied impartially, but there is overwhelming evidence that they are not. African-Americans make up about 12 percent of the US population, yet 40 percent of prisoners on death row are black and 50 percent are non-white. [76] The Death Penalty Information Centre reports that, although ‘blacks are homicide victims at a rate six times greater than whites, 95 percent of those executed in 1990 murdered white people’. [77] Between 1977 and 1992 more than 40 blacks were executed for killing whites, while only one white who killed a black was treated the same way. [78] In a 1987 decision, however, the rapidly rightward moving Supreme Court ruled that statistical evidence of this kind is irrelevant. In order for a death sentence to be overturned, racial (or other) bias must be proved in that particular case – a virtually impossible task. [79]

According to one poll, 58 percent of Americans are disturbed by the fact that innocent people may be executed [80], but there can be no doubt that numerous innocent people have been put to death. Since 1900 at least 416 demonstrably innocent people have been convicted of capital crimes in the US. These, of course, are only the cases we know about. Since 1973 alone at least 43 people on death row have subsequently been found innocent on appeal. [81]

But these are the lucky ones. Once a defendant has been found guilty, it is extraordinarily difficult for him or her to have the conviction overturned. Before the initial trial defendants are (in theory at least) assumed to be innocent, and the prosecution must demonstrate guilt beyond a reasonable doubt. After conviction, however, the presumption of guilt shifts, and the defendant must produce ‘clear and compelling’ evidence to be found innocent. Moreover, in the majority of states there is a time limit for the introduction of new evidence. In 17 states new evidence must be submitted within 60 days of the initial conviction, otherwise it is ineligible. As Michael Ross notes, these rules are inflexible:

Roger Coleman’s volunteer attorneys uncovered evidence of his innocence after his conviction for murder. However, his appeal based on this newly discovered evidence was filed three days late, and because of this error, made by his attorneys, the Virginia state courts and federal appeals courts refused to hear the new evidence. Roger Coleman was executed on May 22, 1992. [82]

Recent Supreme Court decisions have made the situation even worse, denying appeals on narrow technical grounds in the face of new evidence of innocence. In 1993 the court denied the appeal of Leonel Torres Herrera who was convicted in 1982 in Texas of the murder of two police officers. Some years later it came to light that Herrera’s brother Raul, who had subsequently died, had confessed to the murders, and Raul’s son testified that he had seen his father commit the killings. This evidence was not even considered, because the cut off date for new evidence had long since passed. The Supreme Court upheld this decision, ruling that Herrera’s claim of ‘actual innocence’ was not relevant to the question of whether or not he had received a fair trial. In a dissenting opinion, Justice Harry Blackmun – previously a proponent of capital punishment – attacked the ruling, arguing that the ‘execution of a person who can show that he is innocent comes perilously close to simple murder.’ Herrera was executed on 12 May 1993.

Earlier this year the court made an even more egregious ruling on another Texas case. In 1987 Jesse Dewayne Jacobs was sentenced to death for murder on the basis of a confession which he subsequently retracted. After this retraction the state prosecutor conceded that Jacobs was innocent and that the murder was in fact committed by his sister, who was then tried and convicted for the crime. Despite the second conviction, however, Jacobs’ death penalty still stood. An appeals court acknowledged that the verdicts of the two trials were at odds, but declared that ‘it is not for us to say’ that the original conviction was mistaken. On 2 January 1995 the Supreme Court upheld this decision by a six to three vote and Jacobs was executed by lethal injection two days later. ‘I have news for you,’ he said moments before he died. ‘There’s not going to be an execution. This is premeditated murder.’ [83]

Those campaigning to end the injustices of the death penalty, however, can expect little help from politicians in the Democratic Party, who have increasingly used support for capital punishment as a way to demonstrate that they are ‘tough on crime’. ‘Democrats around the country are determined never again to permit Republican candidates to capture the symbols of law and order,’ says one political consultant. ‘Politics is nuclear. Take no prisoners’. [84] Bill Clinton, in particular, took this advice to heart in his campaign for the presidency. During the crucial New Hampshire primary at the beginning of 1992 he returned home to Arkansas to sign the death warrant for Rickey Ray Rector, a brain damaged black man, and then boasted that, while other candidates claimed to support capital punishment, he was the only one who had enforced it.

Conclusion

Crime policy in the US has little to do with reducing crime or protecting the public, and much more to do with controlling economically deprived sections of the population, providing an ideological diversion from more serious problems, and reinforcing racial divisions within the working class. This ‘law and order’ agenda has been promoted by both Republicans and Democrats, and in recent years has seemed to carry all before it.

Despite this, however, the ruling class agenda on crime can be fought. Indeed, it already is being fought in a variety of ways, ranging from the work of human rights organisations to the frequent occurrence of prison riots. Yet by themselves the people engaged in these activities lack the social power to affect the system except at the margins. Such resistance can only be successful if it is linked to a much broader movement for social change. During the 1960s and early 1970s, for example, movements fighting for progressive change in the wider society sparked a radical prisoners’ rights movement within US prisons. But as the outside movements went into decline the prison organisations were isolated and crushed as well. [85] Today the ruling class crime agenda can be successfully challenged by linking the fight against it to a more general working class fightback for decent jobs, education, healthcare, and other social programmes the budgets of which are being slashed due to the growth of the voracious crime industry. In the longer term such a movement has the potential power not just to oppose current policies, but to end the system responsible for the deprivation and poverty which give rise to crime in the first place.

2. Some Republicans nevertheless voted against the bill because of a gun control clause which bans a number of assault weapons.

3. I restrict my discussion in this article to political responses to ‘street crime’ – i.e. burglary, theft, assault, rape, murder and similar offences. In fact it is ‘suite crime’ – white collar and corporate crime (not to mention many business activities which are legal under capitalism) – which costs ordinary citizens far more in financial terms and which is responsible for many more deaths each year. How ‘crime’ gets defined is clearly also a political issue. See M. Parenti, Democracy for the Few (fifth edition, New York 1988), pp. 112–121, 124–127.

13. Even three strikes is too generous for some, however. A ‘two strikes’ law – life without parole for second time violent offenders – was approved by voters in Georgia in November 1994, and California governor Pete Wilson is now pushing a ‘one strike’ proposal for rapists, child molesters and arsonists.

19. The high crime rate in the US is due to a variety of factors, but in particular the country’s exceptionally high poverty level. See E.M. Schur, Our Criminal Society: the Social and Legal Sources of Crime in America (Englewood Cliffs, New Jersey 1969) for a somewhat dated but nevertheless still useful discussion.

36. See S. Smith, Twilight of the American Dream, International Socialism 54 (Spring 1992).

37. On the role of racism see A. Callinicos, Race and Class (London 1993).

38. One exception was the 1928 presidential election. At a time when, as one commentator notes, ‘the police routinely held suspects incommunicado for long periods and extracted confessions through physical and psychological torture, often with the prosecutor’s knowledge or participation’, the Republican candidate Herbert Hoover made ‘law and order’ an issue in his campaign. ‘Every student of our law enforcement mechanism’, Hoover told one audience, ‘knows full well … that its procedures unduly favour the criminal … and that justice must be more swift and sure.’ (C.E. Silberman, Criminal Violence, Criminal Justice [New York 1978], p. 172.) He raised the issue again in his inaugural address and set up the Wickersham Commission to study the problem. When the commission found that the criminal justice system was brutal, corrupt and inefficient, however, its reports were shelved and its recommendations ignored (L.M. Friedman, Crime and Punishment in American History [New York 1993], pp. 273–274).

41. Goldwater’s bellicose views on foreign policy probably hurt him the most. On one memorable occasion during the campaign he suggested ‘lob[bing] one into the men’s room of the Kremlin.’ (Quoted in D. Smith and M. Gebbie, Reagan for Beginners [New York 1984], p. 74.)

42. J. House (ed.), George C. Wallace Tells It Like It Is (Selma, Alabama 1969), p. 29.

46. Privately Nixon was a racist who believed that blacks are genetically inferior to whites, and an anti-Semite. See M.A. Genovese, The Nixon Presidency: Power and Politics in Turbulent Times (New York 1990), p. 82, and S.E. Ambrose, Nixon, Volume Two: the Triumph of a Politician 1962–1972 (New York 1989), pp. 272–273, 641. After he was elected Nixon did all he could to slow down the implementation of civil rights legislation in order to shore up his support in the South (M.A. Genovese, op. cit., pp. 81–88.)

47. Phillips was a Goldwater supporter who worked for Nixon’s attorney general, John Mitchell, after the election.

52.Ibid., p. 184. Humphrey was also, of course, an enthusiastic defender of the war in Vietnam who said nothing to protest at the brutal police attacks on demonstrators outside the Democratic convention in Chicago where he was nominated. Nevertheless, his response is striking – no serious Democratic candidate would say such a thing today. In 1968, at the height of the post-war boom, the Democratic Party stood for guns and butter. Today, over a quarter of a century and three major recessions later, with the US economy mired in long term crisis, the promise of butter has long since been abandoned.

58. The function of crime policy was not, of course, purely ideological. It was during the Nixon presidency that the FBI carried out murderous attacks on members of the Black Panther Party, and in 1972 imprisonment rates began to climb for the first time in 50 years (S. Whitman, op. cit., p. 70).

59. Quotes and information in the preceding two paragraphs are from D. Smith and M. Gebbie, op. cit., pp 138–142.

79. L.M. Friedman, op. cit., p. 319; M. Ross, op. cit., p. 18. Two years later the court ruled that the execution of the mentally impaired is also constitutional. According to an estimate made by the Southern Centre for Human Rights, at least 10 percent of those on death row lack the intellectual capacity to understand their situation. See Manchester Guardian Weekly, 3 May 1992; C. McCarthy, Executing the Retarded is Legal Lynching, Los Angeles Times, 4 December 1992.

80. M. Ross, The Execution of Innocence, RESIST Newsletter, vol. 3, no. 10, December 1994, p. 3. Ross is himself a condemned man on Connecticut’s death row, currently appealing his conviction.